CHAPTER 350

FORMERLY

SENATE BILL NO. 388

AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO STATE FORESTRY AND SEDIMENTATION AND EROSION CONTROL.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 40, 4002(3), Title 7, Delaware Code by deleting the word "silvicultural," as it appears in that section.

Section 2. Amend Chapter 40, §4002 (3), Title 7, by adding a new final sentence to the section to read, "This subsection does not apply to commercial forestry practices."

Section 3. Amend Chapter 29, Title 7, of the Delaware Code by adding a new subchapter, designated as Subchapter VI, which subchapter shall read as follows:

"Subchapter VI. Water Quality as it relates to silvicultural systems and sedimentation and erosion control.

§2977. Findings; policy; purpose.

The Forestry Administrator shall provide for the protection of the waters of the state from pollution by sediment deposits resulting from silvicultural activities as provided in § 2978 of this title. Through the adoption of this subchapter, the State of Delaware recognizes that water quality protection techniques for silvicultural practices are an integral component of properly managed forests. Further, the State of Delaware recognizes the positive benefits that properly managed forest systems have on the environment, water quality, and quality of life in Delaware.

§2978. Definitions

The following words, terms and phrases, as used have the following meaning ascribed to them except indicates a different meaning: in this Subchapter, shall where the context clearly

(1) 'Owner' shall mean any person that (a) own s or leases land on upon which silvicultural activity occurs or (b) own s timber on land which silvicultural activity occurs.

(2) 'Operator' shall mean any person that operates or exercises control over any silvicultural activity.

(3) 'Pollution' shall mean such alteration of the physical, chemical or biological properties of any waters of the state resulting from sediment deposition that will or is likely to create a nuisance or render such waters (a) harmful or detrimental or injurious to the public health, safety or welfare, or to the health of animals, fish or aquatic life; (b) unsuitable with reasonable treatment for use as present or possible future source of public water supply; or (c) unsuitable for recreational, commercial,
industrial, agricultural, or other reasonable uses.

(4) 'Silvicultural activity' shall mean any forest management activity, including but not limited to the harvesting of timber, the construction of roads and trails for forest management purposes, and the preparation of property for reforestation.

(5) 'Reforestation' is the establishment of a tree crop on forest land.

(6) 'Special order' shall mean a special order or emergency special order issued under §2980.

§2979. Conduct of silvicultural activities.

If the Forestry Administrator or his or her designee determines that an owner or operator is conducting or allowing the conduct of any silvicultural activity in a manner which is causing or is likely to cause pollution, he or

she may advise the owner or operator of corrective measures needed to prevent or cease the pollution. Failure of the Forestry Administrator, or his or her designee, to advise an owner or operator of such corrective measures shall not impair the Forestry Administrator's authority to issue special orders.

§2980. Issuance of special orders.

Special orders can be issued if the Forestry Administrator, or his or her designee, finds that any owner or operator is conducting any silvicultural activity in a manner which is causing or is likely to cause alteration of physical, chemical or biological properties of any state water, resulting from sediment deposition presenting an imminent and substantial danger to (a) the public health, safety or welfare, or the health of animals, fish or aquatic life; (b) a public water supply; or (c) recreational, commercial, industrial, agricultural or other reasonable uses. The Forestry Administrator, or his or her designee, shall have the authority to issue special orders to any owner or operator who is conducting any silvicultural activity in a manner which is causing or likely to cause pollution, to cease immediately all or part of the silvicultural activities on the site and to implement specified corrective measures within a stated period of time. Such special orders are to be issued only after a hearing with reasonable notice to the owner or operator, or both, of the time, place and purpose thereof, and shall become effective not less than five days after service as provided in this section. The commencement of proceedings by the Forestry Administrator for the issuance of a special order shall not impair the authority of the Forestry Administrator to issue an emergency special order pursuant to this subsection. The Forestry Administrator shall provide an opportunity for a hearing, after reasonable notice as to the time and place thereof to the owner or operator, to affirm, modify, amend or cancel such emergency special order. The Forestry Administrator shall not issue a special order to any owner or operator who has incorporated generally acceptable sediment control and stormwater management techniques and guidelines developed by the Forestry Administrator, which techniques have failed to prevent pollution, if the Forestry Administrator determines that the pollution is the direct result of unusual weather events which could not have been reasonably anticipated.

§2981. Hearings, notices.

Any hearing required under this section shall follow Title 29, Chapter 101, of the Delaware Code, the Administrative Procedures Act.

§2982. Civil penalties.

Any owner or operator who violates, fails or refuses to obey any special order may be assessed a civil penalty by the Forestry Administrator. Such penalty shall not be less than $200.00 or more than $2,000.00 for each violation. Each day of a continuing violation may be deemed a separate violation for purposes of assessing penalties. The Superior Court shall have Jurisdiction of the offenses brought under this subsection. In determining the amount of the penalty, consideration shall be given to the owner's or operator's history of noncompliance, the seriousness of the violation, including any irreparable harm to the environment, any hazards to the health or safety of the public, whether the owner or operator was negligent, and the demonstrated good faith of the owner or operator in reporting and remedying the pollution. A civil penalty may be assessed by the Superior Court only after the owner or operator has been given an opportunity for a hearing as specified under in §2981 of this Title. Any person who intentionally, knowingly and after written notice to comply, violates or refuses to comply with any notice issued pursuant to this chapter, shall be fined not less than $500.00 or more than $10,000.00 for each offense. Each day the violation continues shall constitute a separate offense. The Superior Court shall have Jurisdiction of offenses brought under this subsection.

§ 2983. State program

In carrying out this chapter, the Forestry Administrator may, in cooperation with appropriate municipal, county, State and Federal agencies, and with representatives from operators and owners groups:

1) Develop and publish sediment control and stormwater management techniques and guidelines for use by owners and operators;

2) Provide technical and other assistance to owners and operators in the implementation of techniques and guidelines;

3) Conduct and supervise educational programs for owners and operators with respect to sediment control and stormwater management techniques and guidelines;

4) Conduct studies and research and publish the results regarding the causes, effects, and hazards of sediment and stormwater originating from silvicultural activities;

5) Cooperate with appropriate agencies of the United States or other states or any interstate agency with respect to silvicultural activities; and

6) Establish a means of communication, such as a newsletter, so that information regarding program development and implementation can be distributed to interested owners and operators.

Approved July 11, 1994.